Prosecutorial Ethics Lite

Associate Deputy Attorney General David Margolis is the stuff of legends within the Department of Justice. He came to the institution in 1976, and is now the most senior career employee. In a glowing review published in the Legal Times, (sub. req’d) he is described as:

one of the Justice Department’s most respected officials, a lawyer with a sterling reputation earned over 42 years of service at the department. “Taking him on is a losing battle,” says the source. “The guy is Yoda. Nobody fucks with the guy.”

But, the Legal Times goes on to argue, Margolis’s reputation may be exploited from time to time. When the going gets tough, and suspicions of political antics run high, Margolis is the man that the politicos turn to in order to get credibility. Bloomberg reported that both Kyle Sampson and Monica Goodling went to Margolis when the U.S. attorney’s scandal broke, and the latter was described emerging sobbing from his office. Margolis had counseled that a binder of highly compromising email communications she had with the White House had to be disclosed.

But if Margolis really is Yoda, the powerful but diminutive figure from the “Star Wars” series, then the Force may no longer be with him. Indeed, maybe we should be wondering whether he has gone over to the Dark Side.

An ethics issue coming out of the scandal-besieged Montgomery U.S. Attorney’s office is cause for Margolis’s appearance in the press down south. (“Gallion says U. S. Attorney’s office trying to scare Goff into withdrawing suit,” Montgomery Independent, Jan. 10, 2008).

The issue stems from a lawsuit brought by insurance executive John W. Goff against a number of state officials, including Alabama Governor Bob Riley, former Lieutenant Governor Steven Windom, Insurance Commissioner Walter A. Bell and others, which alleges corrupt and improper dealings. Goff’s counsel issued deposition subpoenas against these powerful defendants and William Canary, a man who served as a consultant or advisor to several of them. And then the fun began.

U.S. Attorney Leura Canary, not known to slink from a battle, least of all one involving her spouse, initiated grand jury proceedings against Goff and served grand jury subpoenas against Goff’s lawyers, a legal trick crafted to force their disqualification as counsel and end Goff’s lawsuit. Mrs. Canary involved in this maneuver the same two prosecutors she deployed to handle the politically charged prosecution of former Alabama Governor Don E. Siegelman, namely Louis Franklin and Steve Feaga.

Goff’s counsel, Thomas T. Gallion III, filed a request with Attorney General Mukasey seeking Mrs. Canary’s removal from the matter and inviting a review of her conduct. Gallion noted that Canary’s husband was a key witness in the matter and that he was closely tied to the defendants Riley and Windom. He established, on the basis of public records alone, Mr. Canary’s service to the political figures as an advisor or consultant. He wrote:

Mrs. Canary’s office is attempting to intimidate Mr. Goff so he will no longer pursue his civil litigation against these high profile Republican connected persons. We have information that will convince any open and fair minded person of the improper and/or illegal activities that have taken place and hopefully will be uncovered in the course of Goff’s civil litigation.

Amazingly, however, Margolis was not persuaded. “Our analysis leads us to conclude that no actual conflict of interest exists,” Margolis wrote. He stated that nothing in Gallion’s letter had addressed “what the direct and predictable effect” of the Goff litigation would be on “the financial interests of USA Canary or her husband.”

He went on, however, to state that “USA Canary has, out of an abundance of caution, requested that she be recused from any continuing role in the investigation.” He stated that Mrs. Canary’s choice to handle the matter, Louis Franklin, would continue to handle it, but that an “office [sic] at main Justice” would provide oversight.

I shared this correspondence with several legal ethicists, each of whom assured me that the analysis contained in it was “dead wrong,” and one of whom asked me if I was sure it wasn’t a forgery. Here is the response of Georgetown legal ethics Professor and Harper’s contributor David Luban:

Two facts or allegations stand out in this case. First, Goff’s testimony in his lawsuit against the governor and lieutenant governor could implicate Leura Canary’s husband. Second, she launched the criminal investigation of Goff after he filed the lawsuit against her husband’s political cronies. The obvious suspicion is that the investigation is a retaliation to Goff’s lawsuit and the threat it poses to her husband – an attempt to intimidate or distract or discredit Goff. If prosecuting Goff does spare her husband from damaging accusations, there is no doubt that that would save him from a lot of grief, and most likely from the need for an expensive legal defense.

So why does the Justice Department conclude that prosecuting Goff would have no predictable impact on the Canarys’ finances? The December 12 letter announces the conclusion, but it breathes not a word about how DOJ reached it. It can’t be that DOJ investigated the charges in just 26 days. It looks as if the Justice Department simply blew off the allegations. And it also blew off Goff’s request that not only Leura Canary, but other lawyers in the office she heads, should be disqualified from the Goff case.

This isn’t the Justice Department’s proudest moment. A serious response by the Department would be an investigation to find out whether this suspicion is right. Retaliating against Goff with a criminal investigation would be major wrongdoing by a U.S. Attorney, and it deserves a serious investigation. If the suspicion is false, Ms. Canary should welcome the investigation because it would clear her name.

I agree with Prof. Luban, but it seems to me that the Margolis letter is also stunningly wrong on other points. It proceeds on the basis that the recusal standard is “a predictable effect on the financial interests” of the Canary household. Of course, Margolis’s assumption that there would be no such consequence is highly unprofessional, involving a suspension of the faculties of inductive reasoning. Mr. Canary’s business as a political consultant turns very heavily on the success of his clients, of which the two defendants are his most prominent. His fate as a political consultant is theirs. Margolis’s statement would have us assume that, in 2000, the disqualification and removal of George W. Bush from the Republican nomination process would have no effect on the financial interests of Karl Rove. It is so completely absurd, one wonders what sort of mental lapse led him to commit it to paper.

But Margolis doesn’t even articulate the correct standard. He is referring to a standard that applies to criminal wrongdoing by a U.S. attorney—which in this case is not easily dismissed. The recusal standards appear in 28 U.S.C. § 528, namely “personal, financial, or political conflict of interest, or the appearance thereof.” These standards are spelled out in the U.S. Attorney’s Manual. So it is not merely financial. Far more to the point, it is political. In this case, the defendants are closely associated with Mrs. Canary, while the other half of the Canary matrimonial partnership attends directly to their political counseling. So the political conflict is manifest. This is beyond the matter of public appearance, or in the statutory language “the appearance thereof,” which would mandate action even when an actual conflict does not exist. Under that standard, even an innocent relationship is disqualifying if it might reasonably appear compromising in the public view. But there’s no need to speculate on appearances. They are an objectively ascertainable fact. The appearance is that the Middle District U.S. Attorney’s office has been converted into a cesspool, that the U.S. Attorney makes ready and regular use of the most powerful tools of the criminal justice system–the secret power of inquiry vested in the grand jury–to lash out against her and her husband’s perceived political and legal rivals. It boggles the mind that an experienced attorney like Margolis would fail to see that.

And in this case, sharp allegations of a politically motivated vendetta launched by this very U.S. attorney have reverberated in the national media, in reports in the Los Angeles Times, Time Magazine, The New York Times, in a special on MSNBC and another one shortly to be aired on CBS’s “60 Minutes.” So Margolis’s investigation does not appear to reach even as far as the pages of his morning newspaper. It demonstrates a breathtaking indifference to the “appearance of impartiality” standard, quite apart from the substantive conflicts.

Prof. Luban is also correct about the inadequacy of the “voluntary” remedy that Margolis suggests. By the way, one thing strikes me—this is the second letter I have seen written by Margolis with the phrase “USA Canary has, out of an abundance of caution, requested that she be recused.” As my readers will recall, exactly those words also appeared in a letter that Margolis wrote in connection with the Siegelman prosecution. And the “solution” that Margolis crafted? Exactly the same. So let’s just recount the facts that contrast with the illusory world of the Margolis correspondence:

• Did Leura Canary actually ever recuse herself from the Siegelman case? I think the answer is “no.” She continued to be deeply involved with it after the Margolis letter was issued. She didn’t even hide her involvement, giving interviews about the case at least four times, appearing at a press conference alongside of Noel Hillman. She did not recuse herself, she engaged in an evasive maneuver designed to sell the public on the idea that she did. And main Justice stood by and let it happen. Indeed, at this point it’s increasingly looking like main Justice winked at it all the way.

• Louis Franklin, who handled the Siegelman case, is Leura Canary’s employee, who reports to her, gets his paycheck cut by her, gets his performance evaluation from her, and whose career is entirely dependent upon her. The idea that anyone would think he is independent of Leura Canary is ludicrous. His conduct of the Siegelman case is further dramatic evidence of his lack of independence and his deep involvement in political shenanigans. We will very shortly be seeing much more detail on that front, and we will be hearing from a prominent former Republican attorney general who has taken the time to study the Siegelman case in meticulous detail and who evaluates this situation exactly as I do.

• Leura Canary did not “voluntarily” step down, as Margolis’s letter disingenuously suggests. Her feint occurred only after the question of her obvious disqualification was formally raised: both in the Siegelman case and in the Goff case.

What did Margolis fail to do that the ethical rules and the statute required?

• He should have conducted an independent inquiry into what happened. His letter contains proof that no inquiry occurred.

• He should have followed the procedures that the law requires with respect to the appointment of a new acting U.S. Attorney. Louis Franklin is categorically unqualified for this role. A U.S. attorney from a different district should have been appointed and an outside staff brought in to handle it. Indeed, that is a procedure with which Margolis is well familiar, it is what a real recusal (as distinguished from one which is a fraud on the public) requires.

• He should have referred the matter to the Office of Professional Responsibility and requested an independent investigation into Leura Canary’s conduct which is the subject of Gallion’s letter.

• He should have directed compliance with the directions of the House Judiciary Committee and the turnover to Congress of the records relating to Leura Canary’s last pseudo-recusal. The fact that Justice continues to obstruct Congress’s inquiry only confirms suspicions as to the irregularity, if not indeed the criminality, of the conduct of the U.S. attorney in Montgomery.

• The legal standard here is very clear. If Gallion’s allegations are true, Leura Canary violated the ethics standard and the statutory standard. The violation occurred, just as it did in the Siegelman case, and in the case of the negotiated plea bargain with Lanny Young, on her own initiative, and with her knowledge from the first step. The remedy is crystal clear. The statute states “a willful violation of any provision thereof shall result in removal from office.” Leura Canary should have tendered her resignation or should have been forcibly removed from office.

So rather than apply the unambiguous ethics rules and the law, Margolis engaged in a series of evasive maneuvers designed to shield and protect Leura Canary, who may be the “loyalest Bushie” among the ninety-three U.S. attorneys. And this is at least the second time he has done so. (Incidentally, main Justice conducted no independent review of the Siegelman prosecution, or of the highly abusive plea bargain arrangements surrounding Lanny Young either–even after the matter came under Congressional scrutiny and was the subject of a detailed report in Time Magazine. It imperiously declined to send a witness to the hearings and issued a letter to the Committee prepared by its Congressional liaison which was riddled with gross falsehoods and consciously misleading statements.)

Now let’s contrast this case with the treatment of the case involving Governor Siegelman. Both involve ethics infractions which rise as alleged to the level of crimes, and both play on the public perception of conduct which the official actor insists is entirely innocent. In the Siegelman case, they were investigated and two senior career prosecutors concluded that there was no basis to proceed to a prosecution. With the connivance of high-level political appointees at main Justice and the White House, Leura Canary’s office proceeded with the prosecution anyway. It also disseminated false public statements about the conclusions of the professional staff. In my view it was the most painfully obvious case of political persecution in recent American history, and is likely to be studied as a textbook case of prosecutorial abuse by law school students for decades to come.

And now the alleged ethics lapses of Leura Canary. They are extremely serious and are destroying the reputation of the U.S. Attorney’s office in Montgomery. But main Justice simply brushes them off, issuing a dismissive letter which fails even to meet minimal standards of legal plausibility. What we are seeing is two flavors of justice: one for the political opposition, and one for the “home team,” as Mrs. Canary would say. This reflects the justice standards of a banana republic.

Of course, there was a time when the Justice Department operated to a high standard of professionalism and ethics. In fact, it wasn’t so long ago. I still remember getting a lecture on the Department of Justice’s ethics standards by my mentor, former Deputy Attorney General Harold R. Tyler. “For a federal prosecutor,” he said, “the standard must be that of Caesar’s wife. It’s not sufficient that the prosecutor fastidiously keep all the rules and avoid any conflicts. The prosecutor must also be understood by the public to do so.” In other words, scrupulous adherence to the rules matters, and so does the appearance that one is adhering to the rules.

Caesar famously forbade his wife Calpurnia the right to attend public theater because he feared it would set the gossips talking; and he divorced a prior wife because she had become the target of malicious gossip. Margolis spurns the ethics of Caesar’s wife, and he leaves us all wondering whether he has embraced the feel-good ethics of Caesar’s mistress Servilia. She was the butt of the single most famous joke of Cicero, recorded by the historian Suetonius. Speaking of the fact that Caesar had bought Servilia some estates at a rigged auction for a pittance, Cicero quipped “Quo melius emptum sciatis, tertia deducta” — it “was a better deal than you think, for he got a third off.” But the Latin words “tertia deducta” also could be read “he seduced Tertia.” That was the name of Servilia’s daughter, and the rumor was that to hold Caesar’s favor, Servilia had pimped her own daughter to him. That definitely looks close to the ethics standards in play here.

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